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THIRD AMENDMENT
THIS THIRD AMENDMENT to the Credit Agreement referred to below (this
"Third Amendment"), is made and entered into as of this 7th day of May, 1999 by
and among XXXXXX XXXXXX, INC., a corporation organized under the laws of
Delaware (the "Borrower"), the Lenders party to the Credit Agreement (as
defined below) and identified on the signature pages hereto, and FIRST UNION
NATIONAL BANK, as Administrative Agent for the Lenders.
Statement of Purpose
The Lenders have extended certain credit facilities to the Borrower
pursuant to the Amended and Restated Credit Agreement dated as of June 18, 1998
as amended by the First Amendment dated as of August 26, 1998 and the Second
Amendment dated as of September 8, 1998 (as so amended and as further amended,
restated, supplemented or otherwise modified, the "Credit Agreement"), by and
among the Borrower, the Lenders and the Administrative Agent.
The Borrower has requested that the Lenders amend the Credit Agreement
to, among other things, modify certain provisions of Article X of the Credit
Agreement and amend the Credit Agreement to extend another Term Loan to the
Borrower in an aggregate principal amount of Sixty-Five Million Dollars
($65,000,000) in order to pay a dividend to the shareholders of the Borrower,
and the Lenders have agreed to do so, but only on the terms and conditions set
forth below in this Third Amendment.
NOW THEREFORE, for good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereto agree as follows:
1. Definitions. All capitalized undefined terms used in this Third
Amendment shall have the meanings assigned thereto in the Credit Agreement.
2. Amendments to Credit Agreement. The Credit Agreement is, effective
as of the date hereof and subject to the satisfaction of the conditions
precedent set forth in Section 5 hereof, hereby amended as follows:
(a) Article I is hereby amended in the following manner:
(i) by amending and restating, in their entirety, the
following definitions:
"Additional Term Loan Funding Percentage" shall equal the
corresponding percentage set forth on Schedule 1 hereto.
"Aggregate Commitment" means the aggregate amount of the
Lenders' Commitments hereunder, as such amount may be reduced or
modified at any time or from time to time pursuant to the terms
hereof. On the Third Amendment Effective Date, the Aggregate
Commitment shall be One Hundred Sixty-Five Million Dollars
($165,000,000).
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"KMI Dividend" means the collective reference to (a) a
dividend not in excess of Seventy-Five Million Dollars ($75,000,000)
paid to the shareholders of the Borrower in part on the Closing Date
and the remainder during 1998 (the "1998 KMI Dividend") and (b) a
dividend not in excess of Sixty-Five Million Dollars ($65,000,000) to
be paid to the shareholders of the Borrower on the Third Amendment
Effective Date.
"Term Loan Commitment" means (a) as to any Lender, the
obligation of such Lender to make the Term Loans for the account of
the Borrower hereunder in an aggregate principal amount not to exceed
the amount set forth opposite such Lender's name on Schedule 1 hereto,
as such amount may be reduced or modified at any time or from time to
time pursuant to the terms hereof and (b) as to all Lenders, the
aggregate commitment to make Term Loans. The Term Loan Commitment of
all Lenders on the Closing Date shall be Eighty-Five Million Dollars
($85,000,000) and the Term Loan Commitment as of the Third Amendment
Effective Date shall be increased by Sixty-Five Million Dollars
($65,000,000) for a total Term Loan Commitment of One Hundred Fifty
Million Dollars ($150,000,000) for all of the Lenders.
(ii) by inserting in alphabetical order the following
newly defined terms:
"Third Amendment" means that certain Third Amendment to this
Agreement dated as of May 7, 1999 by and among the Borrower, the
Lenders and the Administrative Agent.
"Third Amendment Effective Date" means the date of the Third
Amendment or such later Business Day upon which each condition
described in Section 5 to the Third Amendment shall be satisfied or
waived in all material respects in a manner satisfactory to the
Administrative Agent.
(b) Section 2.7 of the Credit Agreement shall be amended in its
entirety by inserting the following Section 2.7 in lieu thereof:
"SECTION 2.7. Use of Proceeds. The Borrower shall use the
proceeds of the Revolving Credit Loans solely (a) prior to August 19,
1998, for future general corporate purposes in an amount not greater
than $5,600,000, (b) prior to December 31, 1998, to finance
investments permitted by Section 11.3(d), make dividends and
distributions permitted by Section 11.6(e) and pay income taxes and
Interest Expense, (c) on or after December 31, 1998, to finance
investments permitted by Section 11.3(d) and (d) to pay certain fees
and expenses incurred in connection with the transactions contemplated
hereby."
(c) Section 4.1 of the Credit Agreement, Term Loans, is hereby
amended and restated in its entirety to read as set forth below:
Term Loans. Subject to the terms and conditions of this
Agreement, each Lender severally agrees to make (i) a Term Loan to the
Borrower on the Closing Date in a principal amount equal to such
Lender's Term Loan Commitment on the Closing Date
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and (ii) an additional Term Loan to the Borrower on the Third
Amendment Effective Date in a principal amount equal to such Lender's
Additional Term Loan Funding Percentage of $65,000,000.
(d) Section 4.2(a), Procedure for Advance of Term Loans, is hereby
amended and restated in its entirety to read as set forth below:
(a) The Borrower shall give the Administrative Agent
irrevocable prior written notice in the form attached hereto as
Exhibit C-2 prior to 11:00 a.m. (Charlotte time) on the Closing
Date or, as applicable, the Third Amendment Effective Date
requesting that, as applicable, the Lenders make (a) a Term Loan
in the original principal amount of $85,000,000 as a Base Rate
Loan on the Closing Date and (b) a Term Loan in the original
principal amount of $65,000,000 as a Base Rate Loan on the Third
Amendment Effective Date.
(e) Section 4.2(c), Procedure for Advance of Term Loan, is hereby
amended and restated in its entirety to read as set forth below:
(c) Not later than 1:00 p.m. (Charlotte time) on the
Closing Date or, as applicable, the Third Amendment Effective
Date, each Lender will make available to the Administrative Agent
for the account of the Borrower, at the office of the
Administrative Agent in funds immediately available to the
Administrative Agent, the amount of such Lender's Term Loans. The
Borrower hereby irrevocably authorizes the Administrative Agent
to disburse the proceeds of the Term Loans in immediately
available funds by wire transfer in accordance with the Notice of
Account Designation delivered pursuant to Section 6.2(f). Any
amount borrowed under this Section 4.2 and subsequently repaid or
prepaid may not be reborrowed.
(f) Section 4.6, Use of Proceeds, is hereby amended and restated in
its entirety to read as set forth below:
The Borrower shall use the proceeds of the Term Loans
solely to (a) finance the KMI Dividend; provided, that any
proceeds of the Term Loans not used to pay the 1998 KMI Dividend
on the Closing Date shall be invested in accordance with Section
11.3(b) pending payment of the remaining 1998 KMI Dividend, (b)
repay the Existing Facility and (c) pay certain fees and expenses
incurred in connection with the transactions contemplated hereby.
(g) Article X, Financial Covenants, is hereby amended by inserting
the following paragraph after the last paragraph thereof:
For the purposes of calculating KMI Cash Flow and KMEP
Cash Flow in Sections 10.1 through and including 10.4 with
respect to (i) the Fiscal Quarter
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ending June 30, 1999, such KMI Cash Flow and KMEP Cash Flow shall
equal such KMI Cash Flow and KMEP Cash Flow for such Fiscal
Quarter times four (4), (ii) the Fiscal Quarter ending September
30, 1999, such KMI Cash Flow and KMEP Cash Flow shall equal such
KMI Cash Flow and KMEP Cash Flow for the period of two (2)
consecutive Fiscal Quarters ending on such Fiscal Quarter end
times two (2) and (iii) for the Fiscal Quarter ending December
31, 1999, such KMI Cash Flow and KMEP Cash Flow shall equal such
KMI Cash Flow and KMEP Cash Flow for the period of three (3)
consecutive Fiscal Quarters ending on such Fiscal Quarter end
times four-thirds (4/3).
3. Amended and Restated Term Note. Each Term Note executed on the
Closing Date shall be replaced with an Amended and Restated Term Note dated as
of the Third Amendment Effective Date in the aggregate principal amount of One
Hundred Fifty Million Dollars ($150,000,000) (the "Amended and Restated Term
Notes").
4. Update to Schedule 1. Schedule1 attached hereto hereby amends and
replaces in its entirety Schedule 1 attached to the Credit Agreement.
5. Conditions of Effectiveness. This Third Amendment shall become
effective when, and only when, the Administrative Agent shall have received the
following, in form and substance satisfactory to the Administrative Agent:
(a) Counterparts of this Third Amendment executed by the
Borrower, the Administrative Agent and each of the Lenders.
(b) An executed original Amended and Restated Term Note made
payable to each Lender in an amount equal to such Lender's Term Loan
Commitment.
(c) Certified copies of (i) the resolutions of the Board of
Directors of the Borrower approving this Third Amendment and (ii) all
documents, evidencing other necessary corporate action and
governmental approvals, if any, with respect to this Third Amendment
and the matters contemplated hereby.
(d) A certificate of the Secretary or an Assistant Secretary of
the Borrower certifying (i) that the charter documents and the bylaws
of the Borrower delivered on the Closing Date have not been amended or
modified in any respect, and (ii) as to the incumbency and the names
and true signatures of its officers authorized to sign this Third
Amendment to which it is a party and other documents to be delivered
hereunder.
(e) A certificate as of a recent date of the good standing of the
Borrower under the laws of its jurisdiction of organization.
(f) A favorable opinion of Xxxxxxxx & Xxxxxx, L.L.P., counsel to
the Borrower, addressed to the Administrative Agent and the Lenders
with respect to the Borrower, the Third Amendment, the Loan Documents
and as to such other matters as the Administrative Agent or any Lender
may reasonably request.
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6. Limited Amendment. Except as expressly amended herein, the Credit
Agreement and each other Loan Document shall continue to be, and shall remain,
in full force and effect. This Third Amendment shall not be deemed (a) to be a
waiver of, or consent to, or a modification or amendment of, any other term or
condition of the Credit Agreement or any other Loan Document or (b) to
prejudice any other right or rights which the Administrative Agent or Lenders
may now have or may have in the future under or in connection with the Credit
Agreement or the other Loan Documents or any of the instruments or agreements
referred to therein, as the same may be amended, restated or otherwise modified
from time to time.
7. Representations and Warranties. By its execution hereof, the
Borrower hereby certifies on behalf of itself and its Subsidiaries that each of
the representations and warranties set forth in the Credit Agreement and the
other Loan Documents is true and correct as of the date hereof as if fully set
forth herein (except for any such representations and warranties made as of a
specific date which shall be true and correct as of such date) and that as of
the date hereof no Default or Event of Default has occurred and is continuing.
8. Governing Law. This Third Amendment shall be governed by and
construed in accordance with the laws of the State of North Carolina.
9. Counterparts. This Third Amendment may be executed in separate
counterparts, each of which when executed and delivered is an original but all
of which taken together constitute one and the same instrument.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Third
Amendment to be duly executed as of the date and year first above written.
[CORPORATE SEAL] XXXXXX XXXXXX, INC.,
as Borrower
By
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Name:
--------------------------------
Title:
-------------------------------
FIRST UNION NATIONAL BANK, as
Administrative Agent and Lender
By
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Name:
--------------------------------
Title:
-------------------------------
[Third Amendment]
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LENDERS:
SOCIETE GENERALE, SOUTHWEST AGENCY
By
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Name:
-----------------------------------
Title:
----------------------------------
[SIGNATURE PAGES CONTINUE]
[Third Amendment]
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SENIOR DEBT PORTFOLIO
By:
-------------------------------------
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
[SIGNATURE PAGES CONTINUE]
[Third Amendment]
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AMARA-2 FINANCE LTD.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
[SIGNATURE PAGES CONTINUE]
[Third Amendment]
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CERES FINANCE LTD.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
[SIGNATURE PAGES CONTINUE]
[Third Amendment]
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AERIES FINANCE LTD.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
[SIGNATURE PAGES CONTINUE]
[Third Amendment]
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CAPTIVA FINANCE LTD.
By:
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Name:
-----------------------------------
Title:
----------------------------------
[SIGNATURE PAGES CONTINUE]
[Third Amendment]
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ELC (CAYMAN) LTD.
By:
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Name:
-----------------------------------
Title:
----------------------------------
[SIGNATURE PAGES CONTINUE]
[Third Amendment]
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THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA
By:
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Name:
-----------------------------------
Title:
----------------------------------
[SIGNATURE PAGES CONTINUE]
[Third Amendment]
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PILGRIM PRIME RATE TRUST
By: PILGRIM INVESTMENTS, INC.
as its Investment Manager
By:
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Name:
-----------------------------------
Title:
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[SIGNATURE PAGES CONTINUE]
[Third Amendment]
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XXXXXXX XXXXXXX HIGH INCOME
INVESTMENTS LTD.
By:
-------------------------------------
Name:
-----------------------------------
Title:
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[SIGNATURE PAGES CONTINUE]
[Third Amendment]
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SCHEDULE 1
LENDERS AND TERM LOAN COMMITMENTS
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ADDITIONAL TERM LOAN
LENDER FUNDING PERCENTAGE TERM LOAN COMMITMENT TERM LOAN PERCENTAGE
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Aeries Finance Ltd. 0.0000000000% $1,250,000 .0000000000
c/x Xxxxxxxxx Capital Partners
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxxxxx X. Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
E-mail: xxxxxx@xxxxxxxxxxx.xxx
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Amara-2 Finance Ltd. 0.0000000000% $1,500,000 1.0000000000%
c/x Xxxxxxxxx Capital Partners
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxxxxx X. Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
E-mail: xxxxxx@xxxxxxxxxxx.xxx
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Captiva Finance Ltd. 0.0000000000% $1,250,000 .0000000000
c/x Xxxxxxxxx Capital Partners
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxxxxx X. Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
E-mail: xxxxxx@xxxxxxxxxxx.xxx
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Ceres Finance Ltd. 0.0000000000% $3,500,000 2.333333333%
c/x Xxxxxxxxx Capital Partners
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxxxxx X. Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
E-mail: xxxxxx@xxxxxxxxxxx.xxx
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ELC (Cayman) Ltd. 0.0000000000% $7,500,000 5.0000000000%
Xxx Xxxxx Xxxxx Xxxxxx, XX-00
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attention: Xxxxxx Xxxxx
Telephone No. (000) 000-0000
Telecopy No.: (000) 000-0000
Email: xxxxxx.xxxxx@xxxx.xxx
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Schedule 1 - cont.
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First Union National Bank 100.0000000000% $75,000,000 50.0000000000%
c/oFirst Union Capital Partners
One First Union Center
000 Xxxxx Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000-0000
Attention: Xxx X. Xxxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
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Pilgrim America Prime Rate Trust 0.0000000000% $7,500,000 5.0000000000%
00 X. Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
E-mail: xxxxxxx@xxxxxxxxxxxx.xxx
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Pilgrim America High Income Investments Ltd. 0.0000000000% $7,500,000 5.0000000000%
00 X. Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
E-mail: xxxxxxx@xxxxxxxxxxxx.xxx
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The Prudential Insurance Company of America 0.0000000000% $15,000,000 10.0000000000%
c/o Prudential Capital Group
0000 Xxxx Xxxxxx, Xxxxx 0000X
Xxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
E-mail: xxxxxxx.xxxxxxx@xxxxxxxxxx.xxx
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Senior Debt Portfolio 0.0000000000% $15,000,000 10.0000000000%
c/o Xxxxx Xxxxx
The Xxxxx Xxxxx Building
000 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Prime Rate, 8th Floor
Attention: Xxxxxxxx Xxxxxxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
E-mail: xxxxxx@xxxxxxxxxx.xxx
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Societe Generale, Southwest Agency 0.0000000000% $15,000,000 10.0000000000%
0000 Xxxxx Xxxxxx #0000
Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxx*
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
E-mail: xxxxxxx.xxxxx@xx.xxxxxx.xxx
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Total: 100.0000000000% $150,000,000 100.0000000000%
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Schedule 1 - cont.
LENDERS AND REVOLVING CREDIT COMMITMENTS
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REVOLVING CREDIT REVOLVING CREDIT
LENDER COMMITMENT COMMITMENT PERCENTAGE
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First Union National Bank $15,000,000 100.0000000000%
c/o First Union Capital Partners
One First Union Center
000 Xxxxx Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000-0000
Attention: Xxx X. Xxxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
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